Illicit drugs are increasing in the workplace, and marijuana is leading the way.
What should employers do? The answer has become more complicated with the growing number of states legalizing cannabis for medical and recreational use. Should drug tests even include marijuana anymore? If they do, and evidence of marijuana use pops up, should employees be penalized? And further: Do employers have to accommodate for the medical use of marijuana under the federal Americans with Disabilities Act, or state human rights laws?
Such questions are moving to the front burner as employers face a greater risk than ever from a growing culture of impairment that shows no signs of tapering off any time soon. Workforce drug positivity hit a 14-year high in 2018, according to a new analysis from Quest Diagnostics, a leading provider of drug test information.
For a growing number of individuals, cannabis has become the illicit drug of choice. “Marijuana is the second most widely abused substance nationwide, after alcohol,” said Amy Ronshausen, Executive director of Drug Free America Foundation, Inc., St Petersburg, Fla. “According to a survey by drugabuse.com more than one in five respondents said they use marijuana recreationally at work during work hours. Nearly 5% admitted to daily use and more than 13% use it more than once a month.”
Why the sudden upsurge? It’s clearly due to the growing acceptability of marijuana by society in general. “The legalization of marijuana on the state level has continued to grow since California first allowed the drug’s use for medical purposes in 1996,” said Joe Reilly, president of his own drug testing consulting firm in Melbourne, Fla. “Typically, states will first pass legislation legalizing medical marijuana. Later they allow its recreational use.” Thirty-three states now have medical marijuana statutes. Ten states plus the District of Columbia allow both recreational and medical use of marijuana, and the numbers grow every year.
Legalization makes marijuana more socially acceptable. “When a substance is legal and has massive amounts of marketing behind it, there are going to be more consumers,” said Ronshausen. “This is concerning because we are talking about a substance that is impairing people and has a significant impact on health and public safety.”
A costly habit
For employers, the downsides of marijuana are clear. “Workplace drug abuse is costly in terms of lower productivity, higher tardiness and absenteeism, greater use of medical benefits and increased incidents of pilferage and shrinkage,” said Dee Mason, president of Working Partners, a consulting firm based in Canal Winchester, Ohio.
And then there is the liability. As marijuana becomes more popular, employers face a greater risk of lawsuits when dealing inappropriately with individuals under the influence. “It’s critically important for any business to protect employees and the public,” said Reilly. “At smaller companies especially, one accident can be devastating.”
Unfortunately, designing workplace policies that call for appropriate responses to marijuana use is easier said than done.
“Employers are struggling to adapt to changes in state marijuana legislation,” said Faye Caldwell, managing partner of Caldwell Everson PLLC, a Houston-based employment law firm specializing in workplace drug testing. The biggest problem is that marijuana laws vary so widely by state. “Each state has different requirements for employers, and many of the laws are quite vague.”
Two things are certain: In every state it is allowable to have a policy that prohibits the use of marijuana on the job and prohibits an employee from being impaired while on the job, said Caldwell. But beyond that common framework, variety abounds.
“Some state marijuana laws are more favorable toward employers, and others are more favorable toward employees,” said Reilly. “For example, in some states you cannot discriminate against workers in non-safety sensitive positions who need marijuana for medical reasons. In such cases, allowing offsite smoking might be a workable accommodation. In other states you may be allowed to terminate a worker for medical use of marijuana, even if he or she is not in a safety sensitive position.”
Furthermore, some laws seem complex. “In Nevada, the law says that employers cannot refuse to hire someone who is using marijuana legally in the state,” said Dr. Donna R. Smith, regulatory compliance officer in the Tampa Bay, Fla., office of Workforce QA, a nationwide third-party administrator of drug free workplace programs. “On the other hand, the same law states that once the employee is hired, the employer can test for drugs and terminate for positive results if the employer has announced that no marijuana use by employees will be tolerated.”
“In Illinois, the statute says that employers can have zero tolerance policies for marijuana use and can test for marijuana,” said Smith. “But employers cannot take any action against employees unless it can be proven they used the marijuana on company property while on duty or were impaired by marijuana use while on duty or used marijuana while on a call to perform customer services.”
Legal confusion can often be mitigated by case law—that vast body of rules arising from actions in the courts of the land for every nook and cranny of the legal universe. Unfortunately, there is little help from this channel when it comes to marijuana use. According to Caldwell: “Because the laws are so new, there is not a lot of fill-in detail that might come from a history of court cases or other regulatory action.”
Employers at one time could fall back on a general appeal to the federal ban on marijuana, figuring it trumps state law. No longer. “The fact that marijuana use is federally illegal, as a criminal matter, does not mean that states cannot legislate employment status,” said Caldwell. “Employment is generally a state matter.”
Employers also need to be aware that some municipalities have passed laws about marijuana. A new law in New York City states that you cannot test for marijuana usage except for safety sensitive positions. The law is scheduled to take effect on May 10, 2020.
If employers must deal with a patchwork of state and city laws, the end result is often a confusion that causes delays in formulating and implanting workplace drug policies. “Business leaders have not really been talking about this topic as they should,” said Reilly. Delay can be costly. “Companies that do not invest the required time and effort to adjust their workplace policies end up making hasty employment decisions, and those often lead to lawsuits. Maybe they get sued, for example, for terminating or denying employment to someone who fails a marijuana drug test.”
So how do you design policies that create safe workplaces while protecting your business from lawsuits? “I encourage employers to seek legal counsel,” said Reilly. “Then decide how the business’ current workplace policies need to change to conform to state laws.”
Reilly pointed out some common areas. “Suppose your existing policy calls for termination when an employee fails a drug test. Should you change the policy to allow exceptions for legitimate marijuana medical use? And what if the employee is in a safety sensitive position, such as operating a forklift, or working on building roofs or working with children? You cannot allow people to work in such positions while under the influence of marijuana. Will you terminate them, or accommodate by moving them to safer positions when possible?”
The answers to all of those questions must conform to state law. The specifics about current and changing laws are important, but so is a sensitivity to larger issues that can impact policy decisions. “To come up with workable policies, employers need to evaluate the nature of their workforce, the presence of safety-sensitive work positions, and the availability of prospective employees,” said Caldwell. “The last factor can be of particular importance given the greater number of people using marijuana and the low unemployment numbers in many areas of the country. The employer with too restrictive policies may not be able to hire enough otherwise qualified applicants to fill the available jobs.”
The solution can often involve balancing safety with liability. “Employers need to reach some sort of balance between the creation of a safe workplace and the risk of litigation,” said Caldwell. “Reaching that balance can be difficult. For example, an employer may be tempted to state that accommodation for marijuana use will only be provided to the extent mandated by law. However, that employer needs to not only look at marijuana laws, but also consider the disability and human rights laws that may provide protection in a given state.”
Testing for marijuana
One thing is for sure: Employers may still outlaw on-site use of marijuana. “In states where marijuana is legal, you can still ban its use in the workplace, just as you can with alcohol,” said Reilly. “Nothing in the statute prevents an employer from maintaining a drug-free workplace, whether for medical or recreational purposes.”
That sounds good on the surface. But a problem has arisen with the packaging of marijuana in new forms. “We are not just talking about a joint which would be easy to see and smell,” said Ronshausen. “We also have products like granola bars, soda and candy that contain marijuana. Without actually looking at the packaging how would you know employees are using the drug?”
One way to spot use is, of course, to test. We have already seen that states are complicating this issue with a patchwork of laws that dictate when testing can and cannot be used. And there’s another problem: No marijuana test has yet been devised that can indicate impairment. That’s a big difference from alcohol testing.
“Normal workplace drug tests can only reveal that an employee has recently used marijuana—not that the employee is actually impaired at any given point in time,” said Caldwell. While blood tests can reveal the level of marijuana, currently no consensus exists as to what level signifies impairment.
Indeed, the new methods of ingestion can result in blood test variances. “While smoking marijuana can result in a quick spike in THC blood levels, that is not the case for other methods of ingestion,” said Caldwell (THC is the principal psychoactive constituent of cannabis). “While ingesting marijuana as an edible, some people might appear very impaired, but their blood levels of THC might never climb very high.”
If it all sounds too complicated, why not just avoid the issue as much as possible? “Some employers are deciding to stop testing for marijuana, because of the complexity of the issues, litigation risk and limited availability of workers,” said Caldwell. “And in those states that prohibit adverse employment action for off duty recreational marijuana use, employers may wonder if any purpose at all is served by such testing.” Whether a test ban is a good idea depends on the laws of the state or states where your business is located, and the nature of your business.
And putting a halt to testing is no panacea, said Caldwell. “Not testing poses its own risks—such as decreased productivity and employee safety issues.”
Indeed, a total testing ban can keep the employer from determining if a certain accident was caused by marijuana use. “If I were advising an employer who was adamant about dropping their marijuana testing, I would urge them to at least test for marijuana post-accident,” said Reilly. “They should also test any time an employee is exhibiting signs and symptoms of some drug influence.”
Communicate with employees
Testing, then, may not disappear from the workplace anytime soon. But if testing alone can’t cover all the bases, how does an employer know an employee is impaired by marijuana use? “There is no exact answer,” said Caldwell. “I encourage my clients to train supervisors to spot behavior that is characteristic of impairment, and to have policies that call for specific steps to take.” Suppose, for example, an operator of a forklift or other heavy equipment is seen to be acting in an erratic manner that might suggest use of marijuana or other drug. “Your policy might call for steps such as writing a report on what is observed, having the employee take a drug test, and removing the employee temporarily from duty.” These policies, like any that touch on drug use, must be approved by an attorney knowledgeable about your state laws.
Whatever the decision your business makes on drug policies, communication with the workforce is critical. “I like a lot of transparency on this topic,” said Caldwell. “Let your employees know your policy and if it calls for accommodation. And give people the opportunity to do the right thing by telling them they cannot come to work impaired and they cannot use marijuana in the workplace.”
Take extra care with those employees who have said they are imbibing the substance. “I encourage employers to have candid conversations with workers who are using marijuana,” said Caldwell. “Talk with them about when they use it, how they use it and what to do to avoid being impaired on the job.”
As we have seen, the growing number of state laws legalizing marijuana is causing an increase in the use of the drug by employees. Will that translate into higher rates for employers’ liability and workers compensation insurance? Experts say it’s too early to tell, but the answer could well be yes.
“It could take a few years, but we anticipate higher insurance rates in those states legalizing marijuana,” said Ronshausen. “In a study reported by the National Institute on Drug Abuse, U.S. employees who tested positive for marijuana had 55% more industrial accidents, and 85% more injuries, than employees who tested negative.” Insurance rates go up for employers who experience more accidents.
Rates may also increase for a related reason. “In those states that offer workers compensation insurance discounts to employers who maintain drug-free workplaces, drug testing is required—and it must include testing for marijuana,” said Smith. “If employers decide to not test for marijuana, they risk losing their insurance premium discount.”
The successful workplace policy will be tailored to the specific needs of an employer’s workplace. To avoid costly errors, experts advise seeking legal counsel, looking at your state laws, updating your policies and educating your workforce.
“There is no one-size-fits-all answer to the question of a workplace marijuana policy,” said Caldwell. “We are still in our infancy on this topic. The biggest challenge right now is uncertainty.”